Drewniak v. U.S. Customs and Border Protection, et al., No. 1:20-cv-00852 (D.N.H., filed August 11, 2020)

Throughout northern New England, Border Patrol operates temporary checkpoints to detain hundreds – if not thousands – of individuals without any suspicion. This case challenges these checkpoints.

On August 26, 2017, Plaintiff Jesse Drewniak, a New Hampshire resident and U.S. citizen, was returning home from a fishing trip when Border Patrol stopped him at one such temporary interior checkpoint. During this encounter, heavily-armed Border Patrol agents illegally detained and searched Mr. Drewniak for almost an hour. After detecting a small quantity of hashish oil, agents arrested Mr. Drewniak for the state law violation-level offense of unlawful possession of a prohibited substance.

In May 2018, the Plymouth Circuit Court reviewed the charges against Mr. Drewniak and fifteen other individuals arising out of the August 2017 checkpoint, eventually suppressing all the evidence as seized in violation of the Fourth Amendment and the New Hampshire Constitution. The state judge further found that Border Patrol was impermissibly using the checkpoint for the purpose of general crime control, not immigration enforcement, thereby making the checkpoint unconstitutional under federal law. The State then voluntarily dropped all charges against Mr. Drewniak and the fifteen other individuals. However, despite this victory, Border Patrol continues to use these unconstitutional checkpoints in northern New England.

Mr. Drewniak now seeks compensatory and punitive damages against the Border Patrol agents involved in his unconstitutional search and seizure pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, as well as declaratory and injunctive relief to stop Border Patrol from conducting these illegal checkpoints in Woodstock, New Hampshire. In November 2020, Defendants moved to dismiss the case for failure to state a claim and lack of subject matter jurisdiction. The parties stipulated to dismissal of claims against one defendant, and the court set a briefing schedule.

On April 8, 2021, the district court issued an order granting in part and denying in part Defendants’ motions to dismiss. The court dismissed count one of the complaint, which sought Bivens damages against a Border Patrol agent for violations of his Fourth Amendment rights. It denied the motion to dismiss the second count, which sought declaratory and injunctive relief precluding Customs and Border Protection (CBP) from operating additional traffic checkpoints. On December 7, 2021, Plaintiff’s filed an amended complaint. On March 22, 2022, the official defendants moved to dismiss the amended complaint. As of November 2022, the motion to dismiss has been fully briefed and a decision is pending from the court. On February 15, 2023, the court denied the Defendants’ motion to dismiss the amended complaint.

Documents:

• Complaint
• Motion to Dismiss for Failure to State a Claim
• Motion to Dismiss for Lack of Jurisdiction
• Order Granting in Part and Denying in Part Motions to Dismiss
• Amended Complaint
• Official Defendants’ Motion to Dismiss

Counsel: ACLU of New Hampshire Foundation; ACLU of Maine Foundation; ACLU Foundation of Vermont; McLane Middleton; Mark Sisti; Albert Scherr

Contact: Gilles Bissonnette | ACLU of New Hampshire Foundation | gilles@aclu-nh.org